State v. Dixon
|Court of Appeals of Kansas
|492 P.3d 455
|14 May 2021
|STATE of Kansas, Appellee, v. De'Andrew V. DIXON, Appellant.
Reid T. Nelson and Debra J. Wilson, of Capital Appeals and Conflicts Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Malone, P.J., Atcheson, J., and Burgess, S.J.
A jury convicted De'Andrew V. Dixon of two counts of aggravated kidnapping, three counts of aggravated criminal sodomy, two counts of criminal possession of a weapon by a convicted felon, and one count each of rape, kidnapping, and battery after a consolidated trial of two criminal cases. The district court sentenced Dixon separately in the two cases and imposed a total controlling sentence of 2,045 months' imprisonment. Dixon appeals, arguing (1) the district court erroneously admitted evidence at trial; (2) the prosecutor committed reversible error during closing argument; (3) cumulative error denied him a fair trial; and (4) K.S.A. 2020 Supp. 21-6819(b)(4), as applied to Dixon, violated his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We find no reversible error in Dixon's trial and affirm his convictions. But we agree with Dixon's constitutional challenge to the "double rule" found in K.S.A. 2020 Supp. 21-6819(b)(4), as applied to his cases, and we vacate his sentences and remand with directions.
Dixon's consolidated cases involve three separate sexual assaults on different women. We will set forth the facts of each assault in detail and then summarize the procedural history of Dixon's prosecution and sentencing in district court.
Sexual assault on L.D.
On October 20, 2016, around 2 a.m., L.D. left the house she shared with her boyfriend and walked to QuikTrip to buy a pack of cigarettes and use the ATM. L.D. had her purse with her that contained her Kansas ID, a social security card, and her debit card. She bought the cigarettes at QuikTrip and then started to walk home.
On her walk home, she passed Champs Bar and noticed a burgundy car driving "really slow on the side of the street," but then it parked beside the Champs' parking lot. L.D. made it home and started to put her keys in the front door when a man grabbed her from behind, put his left hand over her mouth and nose, and held a gun to her temple. The man told L.D. that he would shoot her if she did not cooperate. The man asked L.D. if she had any money and she gave him the money she had received from the ATM. He asked L.D. who else was in the home and L.D. said her boyfriend was inside, to which the man replied that her boyfriend would never let her walk alone again after tonight.
The man pulled L.D.'s hood down over her face and started walking her back to the burgundy car she noticed earlier. The man then told her to lay on her stomach in the backseat and he tied her hands behind her back. The man got into the driver's seat and drove the car somewhere. While driving, the man told L.D. that if she cooperated and did what she was told, then he would not shoot her. He told her that he had done it before, that it was easy to kill someone, but it was a lot of work to stash a body and he did not want to do all of that. The man stopped the car and asked L.D. if she knew what would happen next. When she said no, the man told her he would rape her.
The man then pulled her pants down and put his fingers in her vagina. The man opened a condom with his teeth, put it on, and penetrated L.D. with his penis. The man told her to "[s]uck his dick" but L.D. asked him not to make her do that and she lied about her stepfather making her do that. The man then gave her a choice to either "suck his dick" or he would "come in [her] mouth." The man flipped her over, but kept her hood pulled over her face so she could not see anything, and again penetrated her vaginally and put his mouth on her nipple. He rolled her back over. He then got out of the backseat, pulled up her pants, and drove to a soda machine.
The man mentioned that he had Xanax
or Lortab pills and he gave L.D. two pills. The man then dropped her off by a church and untied her hands. As L.D. got out, she noticed the condom wrapper fell out next to her foot. She did not pick it up because she was scared the man would see her, but she remembered where it was. The man told her to keep walking west and then he drove off.
L.D. walked back to her house, told her boyfriend what happened, and they called 911. She told dispatch that her assailant was black but that she did not see his face. She told the dispatcher about the condom wrapper and that the man let her out by the church. She said she did not know how old the guy was but guessed 20s and that he was 5'10". L.D. reiterated that she did not see the guy.
Wichita Police Officer Jason Harris was dispatched at 4:05 a.m. to L.D.'s address, and L.D. told Harris what happened. Harris noticed ligature marks around L.D.'s wrists. Harris asked L.D. what the man had touched, and she stated her pack of cigarettes and her cards. Harris collected L.D.'s Kansas ID, her social security card, her debit card, and the cigarettes. L.D. also told Harris about the condom wrapper. Harris took L.D. to the area where she saw the condom wrapper fall out of the car, and another officer found it. Harris then took L.D. to the hospital to complete a sexual assault exam.
Tiffany Warren, a sexual assault nurse examiner (SANE), saw L.D. at 7:20 a.m. L.D. told Warren a man penetrated her with his penis and finger. L.D. also reported that the man also had licked her breast, so Warren took a sample. L.D. reported that earlier in the morning, around 1 a.m., she had consensual oral sex with her boyfriend. L.D. told Warren what happened that morning. L.D. told Warren that the man kept her purse but returned her ID, social security card, and cigarettes. Warren noted L.D. had a "parallel redness ligature pattern," about a half centimeter in width, on both of her wrists. Warren conducted a vaginal exam and found a black curly hair that Warren concluded was not L.D.'s because she was shaved. Warren collected the hair.
Wichita Police Sergeant William Stevens, a detective in the Sex Crimes Unit, was assigned to handle L.D.'s case. Stevens submitted the ID, cigarette pack, social security card, debit card, and condom wrapper for printing and DNA testing. Stevens also took swabs from L.D.'s boyfriend. Later in the investigation, Sarah Geering, a forensic scientist at the Sedgwick County Regional Forensic Science Center, submitted the DNA samples from the condom wrapper, L.D.'s ID, and her debit card to the Combined DNA Index System (CODIS). The condom wrapper and debit card came back with a "hit" to Dixon's profile in the statewide database. Geering notified Stevens of the CODIS hit, which directed him to a potential suspect, Dixon.
Sexual assault on J.V.
About a year after the assault on L.D., on October 11 and into the morning of October 12, 2017, another woman, J.V., was at a local bar with some friends to play the open mic night. J.V. had a purse with her and a gym bag full of stuff, including a phone and a laptop. She wore a black Wichita State hat, a summer top, a skirt, Ed Hardy converse shoes, a Mother Teresa necklace, earrings that she made, and underwear and a bra. J.V. also had purplish hair at the time.
After some time at the bar, J.V. and her friends planned to go to an apartment down the street. J.V. ended up walking alone because her friends were on motorcycles. While J.V. was walking, a white Dodge Charger went past her once and then came back around and approached her. J.V. thought it might have been her friend, Art, because she could not see the driver and the driver said "hey, get in." J.V. got in the car but then immediately realized she did not know the person and tried to get out, but the doors were locked. The man started driving and asked J.V. where she was going, and she said just down the road to a friend's house. J.V. asked him to let her out after they had driven a few blocks, but he ignored her and kept driving.
J.V. looked around the car and saw the stereo was missing. She also saw a Wichita State parking sticker. The man drove J.V. around for a while. When they parked, the man pulled out a revolver with a brown wooden handle. He came around and opened J.V.'s door and told her they were going to his apartment to smoke and he put the gun to her back. They began walking but the man took her past the apartments, across the street, and past some spectator stands. He gave J.V. something to smoke that she likened to marijuana mixed with formaldehyde. J.V. said the last thing she remembered before blacking out was stepping onto Ohio Street and the man putting his arm around her neck.
J.V. then woke up in a field naked and beat up. J.V. had scrapes on her heels and knees and her mouth was bleeding. J.V. saw the man in front of her and noticed he was wearing "soldier boots" like a police officer. J.V. told him that she might have AIDS or an STD. At one point he went behind her and tried to have anal sex with her. The man penetrated J.V.'s anus with his penis. He then put his penis in her mouth. J.V. stated the man punched her when she said something that "must have ... pissed him off."
J.V. said a car drove by and that scared the man. They started to walk somewhere but she said she was not going anywhere naked and he handed her yoga pants from her gym bag and boots. They walked to an area under a bridge and she noticed the man had the gun in his back pocket. J.V. grabbed the gun and threw it in a ditch next to where they were walking. The man then turned around and ran. J.V. then ran the other way. J.V. had her purse with her but she never saw her gym bag, with her phone and laptop, again.
J.V. eventually made it to a friend's house and fell asleep. When she woke up, she tried finding a...
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...on appeal, finding it presented a question of law on proven or admitted facts); see also State v. Dixon , 60 Kan. App. 2d 100, 131-32, 492 P.3d 455 (2021) (finding equal protection 509 P.3d 590 challenge to "double rule" properly before the court for the first time on appeal because the cou......
State v. Anderson
...the Sentencing Guidelines alone required this result. Instead, based on this court's decisions in State v. Dixon, 60 Kan.App.2d 100, 131, 492 P.3d 455, rev. denied 314 Kan. 856 (2021); State v. Myers, 62 Kan.App.2d 149, 193, 509 P.3d 563, rev. denied 316 Kan. __(2022); and State v. Fitzgera......
State v. Myers
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...But while his case was pending, and after briefing was complete, another panel of this court decided State v. Dixon, 60 Kan.App.2d 100, 492 P.3d 455, rev. denied 314 Kan. 856 (2021), a case finding that limiting the double rule to felonies charged in a single complaint or case violated the ......